Abstract

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This article considers Justice Robert H. Jackson's great but less than completely remembered December 1944 dissenting opinion in Korematsu v. United States. As we recall that infamous decision upholding military orders excluding Japanese Americans from the West Coast during World War II, we regularly, properly credit Justice Jackson for being one of three Supreme Court justices who refused to assist in enforcing racist orders by judging them to be authorized by the Constitution. We recall much less often that Jackson also wrote in Korematsu, with explicit resignation about judicial powerlessness, that civilian courts, up to and including the Supreme Court, perhaps should abstain from attempting to hold military commanders to constitutional limits in wartime.

Jackson's Korematsu dissent, considered in full, is a coherent, candid, laudable testament to the better human capacities, including his own. The opinion is in part autobiographical, emanating from Jackson's outlook and upbringing as a rural American civilian who viewed life as pacific and individually autonomous and saw law as most workable in such times of peace and unthreatening personal freedom. The opinion also is grounded in Jackson's direct and formative pre-Court experiences with executive power, including its apex in military command. Jackson's Korematsu dissent also fits into his general views of people and power, and particularly into what he saw as the idea of law itself: the product of human beings struggling, by employing selfless reason, to impose some limits on what they and their governments otherwise can perpetrate. And despite Jackson's apparent pessimism about the power of courts to protect constitutional liberties from military command threats during wartime, his Korematsu opinion also displays, and has as part of its bottom line, his characteristic optimism about United States democracy, from its smallest people to its most powerful leaders.

In his years after Korematsu, Justice Jackson had unique experiences that confirmed his 1944 perspective on the vast nature of executive power, including military power. These experiences also confirmed his hopeful view that the people who possess such power are capable of restraining themselves in its exercise. At Nuremberg in particular, where Jackson was the chief United States military prosecutor of the surviving Nazi leaders following Germany's unconditional surrender to the Allies, he worked closely with military leaders who exercised such restraint, and Jackson himself functioned as - and tried with considerable success to live up to the responsibilities of being - one of those powerful commanders.